Goldman v. Jacobs

38 Misc. 781, 78 N.Y.S. 833

Opinion

MacLean, J.

The defendant appeals from a judgment by default, rendered in favor of the plaintiffs, in an action for goods sold and delivered. On the return day of the summons, the defendant moved to transfer the cause on the ground that none of the parties resided in the second district. The evidence in the record to such effect was not contradicted. It was, therefore, the duty of the justice to make the transfer (Greater N. Y. Charter, § 1370, subd. 4), and for his failure therein the remedy of the defendant properly lies in this appeal (People ex rel. Jaffe v. Bolte, 35 Misc. Rep. 53), and the justice being without authority to render judgment (Consol. Act, § 1382; McKee v. Oliver, 2 Daly, 381; Barrowcliffe v. Harrison, 9 id. 473), it must be reversed.

Freedman, P. J., and Gildebsleeve, J., concur.

Judgment reversed, with costs to appellant.